Citations
- 68 F. Supp. 3d 1295
Full opinion text
OPINION & ORDER
HERNANDEZ, District Judge:
Plaintiffs T.L. and G.L. challenge actions taken by Defendants Sherwood Charter School (SCS) and the Sherwood Charter School Board when they were students at SCS. T.L. and G.L. appear through their next friend and father Shaun Lowry. Lowry and Ashley Larson,' formerly a nanny to T.L. and G.L., are Plaintiffs themselves in one claim.
Following the dismissal of several claims in a March 6, 2014 Opinion & Order, 2014 WL 897123, granting in part and denying in part Defendants’ motion to dismiss, the following claims remain: (1) a claim by T.L. for peer-on-peer sexual harassment under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”); (2) a Title IX retaliation claim brought by all Plaintiffs; (3) a 42 U.S.C. § 1983 claim by T.L. alleging a violation of her Fourteenth Amendment due process rights; (4) an intentional infliction of emotional distress (IIED) claim by T.L.; (5) a negligence claim by T.L.; and (6) disability discrimination claims by G.L. under Section 504 of the Rehabilitation Act of 1983, 29 U.S.C. § 794(a), and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132(ADA).
Defendants move for summary judgment on all claims. I grant the motion. As explained below, the Title IX retaliation claims by Lowry and T.L. are the only claims in which questions of fact create an issue for a jury. However, because I agree with Defendants that Plaintiffs fail to establish that SCS is the intended recipient of federal funds, I dismiss the Title IX retaliation claims on that basis. As to all other claims, Defendants are entitled to summary judgment because Plaintiffs fail to create an issue of fact on those claims. Additionally, as to the other Title IX claims and G.L.’s Rehabilitation Act claim, these are alternatively dismissed because of the federal funding issue.
BACKGROUND
T.L and G.L. both attended SCS during the 2011-12 school year and part of the 2012-13 school year. SCS is a small school with approximately 207 elementary and middle school students attending in the 2012-13 school year. The SCS Board-is the governing body of SCS, making decisions in areas such as finance and budgeting, the facility lease, the school’s charter, setting policies, overseeing curriculum, and hiring a principal. Jan Smith was SCS’s principal during the 2011-12 school year. Joy Raboli replaced her as principal beginning in the 2012-13 school year.
The claims in this case are primarily based on T.L.’s contention that she was sexually harassed by her peer K.L. who also attended SCS, and that SCS failed to take appropriate remedial action in response to her complaints about that harassment. Additionally, in December 2012, because of an incident involving T.L., K.L., and Larson, Larson was restricted from volunteering in SCS’s classrooms and T.L. was suspended from school for two days. When Lowry complained about these actions, he allegedly was threatening and abusive to school staff, prompting Ra-boli to ban him from the SCS campus. Finally, G.L., who has diabetes, contends that Defendants failed to reasonably accommodate his disability.
I. The 2011-12 School Year
T.L. was in seventh grade in the 2011-12 school year. During this year, T.L. was placed in an entirely different class schedule than K.L. at the request of both Lowry and KL.’s parent. Lowry Depo. (Ex. 1 to Sherman Deck) at 120; Pis.’ Ex. 36 (Feb. 28, 2012 email from Lowry to teacher Bau-mer and principal Smith telling them that T.L. was complaining about K.L. making negative and vulgar comments to and about T.L. and requesting they be separated as much possible); Lint Decl. at ¶ 4 (noting that during the 2011-12 school year, K.L.’s parents requested that SCS keep K.L. and T.L. as far apart as possible because of T.L.’s frequent taunting of K.L.). According to Lowry, the 2011-12 school year issues were resolved. Lowry Depo. (Ex. 1 to Sherman Deck) at 120.
II. The 2012-13 School Year
A. September-November 2012
T.L. began the 2012-13 school year at SCS but Lowry withdrew her in September of 2012, briefly enrolled her in an online school, then re-enrolled her at SCS several weeks later. In his deposition, Lowry stated he withdrew T.L. because the family was having a positive experience with the online program and because T.L. had voiced repeated concerns about “a particular student” at SCS who kept making “wildly inappropriate,” offensive, sexually explicit comments to her. Lowry Depo. (Ex. 5 to Brague Deck) at 112.
However, Lowry also testified that when he notified SCS that he was withdrawing T.L., he did not tell SCS that the reason for the withdrawal was because of any rude or inappropriate comments being made to T.L. by K.L. Id. at 115. Lowry maintains that there were emails to the school alerting them to the issues with K.L. and which suggested, at some unspecified date in time, that he was considering moving T.L. out of SCS. Id. at 112-15. There are no such emails in the record indicating that he made this complaint contemporaneous with T.L.’s withdrawal from SCS in September 2012. In October 2012, Lowry placed T.L. back at SCS because the online school’s curriculum was not academically sufficient. Id. at 115-16. Low-ry made no mention of any concerns with K.L. when requesting that T.L. be re-enrolled. Defs.’ Ex. 8.
In the 2012-13 school year, completely different schedules for T.L. and K.L. were not an option because the eighth graders had to take courses at the same time. Lowry Depo. (Ex. 1 to Sherman Deck) at 120-21. But, at some unspecified point, SCS staff assured Lowry that T.L. would be seated as far away as possible from K.L. Id. at 121. '
In the 2012-13 school year, Paul Bau-mer was T.L.’s homeroom teacher and also had her for both math and social studies classes. Baumer Depo. (Ex. 7 to Sherman Decl.) at 25-26. T.L. described Baumer as her favorite teacher. T.L. Depo. (Ex. 23 to Sherman Deck) at 17. Baumer noted that T.L. generally got along with her peers. Baumer Depo. (Ex. 7 to Sherman Deck) at 25. T.L. did not complain to Baumer about any negative interactions with K.L. Id. at 48. Baumer rejected the assertion that negative interactions between T.L. and K.L. occurred “almost daily.” Id. at 47-48. He did not hear profane terms used between K.L. and T.L. Id. at 48.
On or about November 6 or 7, 2012, an incident occurred in teacher Jasmine Jones’s science class involving K.L., two other male students, and female student M.K. Raboli Deck at ¶ 4; see also Lint Deck at ¶ 5. The four students had been working together in a group. Id. Apparently, when one of the male students returned from the bathroom, K.L. asked him if he had an erection. Lint Deck at ¶ 5; see also Raboli Deck at ¶ 4 (male students were allegedly having inappropriate talk about erections). M.K. apparently told K.L. that his comment was inappropriate, that he was an idiot, and nobody liked him. Lint Deck at ¶ 5. K.L. allegedly replied with a statement which M.K. understood to be threatening. Raboli Deck at ¶ 8 (M.K. suggested that K.L. threatened her with his penis); but see Lint Deck at ¶ 5 (stating that K.L. said something to the effect of “[d]on’t make me threaten you with my threats even though they are harmless”). M.K., who made Jones aware of the incident, refused Jones’s offer to be moved to a different group and indicated she was alright. Raboli Deck at ¶ 4. Jones moved K.L. to a different group for class on the following day. Id.
Jones emailed K.L.’s mother Cammie Lint that afternoon to tell her about the incident and that Jones was requesting lunch detention for K.L. the following week. Lint Deck at ¶7. Raboli then received an email from M.K.’s mother asking her to investigate the incident. Raboli Deck at ¶ 5. Raboli interviewed several students. Id. at ¶ 7. The investigation yielded conflicting information. Id. at ¶ 8. There was no clear evidence that K.L. sexually harassed M.K. Id. A threat assessment was conducted to evaluate if K.L. was a threat to others or himself. Id. at ¶ 7. As per school district practice, the threat assessment was conducted by mental health care' coordinator Mary Massey with input from Raboli, SCS counselor Melinda Laus, K.L.’s own behavioral specialist, and a school resource officer. Id. at ¶ 9. After reviewing KL.’s discipline record, the circumstances that led to the outburst, and whether there were particular risk factors present, such as access to weapons, the team unanimously determined that K.L. was not a credible threat to other students or himself. Id. at ¶ 9. Raboli, who as principal has responsibility for suspensions and expulsions, suspended K.L. for 2.5 days in mid-November because of his inappropriate comments to M.K. and the other male students. Id. at ¶ 16. And, before his return, SCS implemented a safety plan for K.L. with input from the threat assessment team. Id. at ¶ 12. This included (1) restricting access between K.L. and M.K.; (2) assigning K.L. and M.K. different passing periods; (3) seating K.L. and M.K. on opposite sides of their classrooms; and (4) having K.L. and M.K sit away from each other during lunch. Id.
Lint also received a phone call from the Sherwood Police Department informing her that an anonymous caller reported that K.L. had threatened a female student with a sexual crime at school and the school was doing nothing. Lint Decl. at ¶ 9. The officer took statements from members of the Lint family. Id. The police determined no crime was committed. Id.
Raboli informed the SCS Board about the incident in a November 15, 2012 letter. Pis.’ Ex. 26. There, Raboli described an incident in which the parent of a student appeared in her office, with the student, accusing another student of threatening her by stating something to the effect that he was going to hurt her with her penis. Id. Raboli recited the allegations and SCS’s response which included talking to K.L. who denied using the word penis and said he threatened the student with a hug. Id. Raboli told the SCS Board that she had suspended K.L. for 2.5 days and put a “threat assessment” in place. Id. Raboli also told the SCS Board that the Sherwood Police Department investigated the incident as well and that the middle school community became aware of the situation through social media. Id.
On November 18, 2012, one day before K.L.’s November 19, 2012 return to SCS, Raboli received an email from the parents of R.J., another SCS student, regarding issues between K.L. and R.J. Raboli Decl. at ¶ 16. Then, on November 19, 2012, KL.’s first day back after his 2.5 day suspension, K.L. had a threatening outburst at lunch. Raboli Decl. at ¶ 13; Lint Deck at ¶ 12. This was apparently in response to information provided to K.L. that R.J. had called the police over the incident between K.L, and M.K. Lint Decl. at ¶ 12; Raboli Decl. at ¶ 13. Raboli suspended K.L. again, this time for three days. Raboli Decl. at ¶ 14; Lint Decl. at ¶ 12.
The following day, on November 20, 2012, Raboli met with R.J.s’ parents who informed her that K.L. had allegedly stabbed R.J. with a pencil. Id. at ¶ 17. R.J.’s parents could not provide Raboli with a specific date on which this alleged incident occurred. Id. Raboli told R.J.’s parents about the recent investigation of K.L., his suspension, and the safety plan. Id. at ¶ 16.
A second threat assessment was done. Lint. Decl. at ¶ 15. Although the team agreed that K.L. was not a threat to other students, a stricter safety plan was adopted. Raboli Decl. at ¶ 14. This included assigning education assistant Vilena Raibley to be KL.’s full-time, one-on-one aide to monitor his interactions with other students for safety purposes during the entire school day. Raboli Depo. (Ex. 3 to Sherman Decl.) at 115-16; Raibley Depo. (Ex. 26 to Sherman Decl.) at 18; Raboli Decl. at ¶¶ 14, 15 (noting that the revised November 29, 2012 safety plan provided for Raibley to accompany K.L. at all times when he was in school and specifically at the drop off at school, passing times, PE, lunch, field trips, and seating); Lint Decl. at ¶ 15 (as part of the safety plan, K.L. was accompanied by an adult at all times).
B. December 2012
On or about December 5, 2012, Lint allegedly confronted T.L. and two of her friends away from school grounds while Lint was driving and noticed the students walking. Lowry Depo. (Ex. 1 to Sherman Decl.) at 141-42, 144-45; see also Lint Decl. at ¶ 16 (explaining Lint’s version of the events). T.L. called Lowry who came and picked her up. T.L. Depo. (Ex. 23 to Sherman Decl.) at 14. Lowry then called the police. Id. That evening, Lint received a call from the Sherwood Police informing her that Lowry and T.L. were claiming that Lint had threatened and harassed T.L. Lint Decl. at ¶ 18. According to Lint, the police determined that no crime had been committed. Id.
The next day, Larson, the Lowry family nanny, volunteered in Jones’s classroom during a technology class in which T.L. and K.L. were assigned. Larson sat with T.L. while K.L. was at a different table but close enough to hear the conversation between Larson and T.L. In a written statement, Jones recounted that Larson and T.L. were discussing the incident with K.L.’s mother which had occurred the previous afternoon. Defs.’ Ex. 12. Jones observed and overheard that discussion. Id. K.L. also overheard the discussion and asked them to not talk about it because it “causes me to feel anxiety.” Id. Jones then 'observed Larson roll her eyes and turn back to T.L. Id. Jones asked to speak to Larson outside the classroom where Jones told Larson that her behavior was inappropriate and that she was not welcome back in the classroom. Id. Jones advised Larson that she could speak to Raboli if she pleased. Id.; see also Defs.’ Ex. 14 (written statement by Raibley describing her overhearing T.L. and Larson discussing the events of the previous day and that when asked to stop, they continued their discussion).
After students left the classroom, Jones called Raboli. Defs.’ Ex. 12. During that conversation, Lowry and Larson stepped into the classroom. Id. According to Jones, Lowry said he wanted to talk to her about what had happened with Larson. Id. His tone was angry and irritated. Id. He told Jones she was condescending. Id. Jones’s classroom was a portable building, separated from the church building housing the other parts of SCS. Jones requested to meet with Lowry and Larson inside the church building. Id. Jones and Lowry were both raising their voices and her own tone was upset. Id. She felt physically unsafe to the point she was shaking. Id. She was threatened by Lowry’s size and his tone. Id. Jones told Larson and Low-ry that she was very upset about what had happened that day in class. Id. She recalled putting her hand out in a “back away” motion at least three times during the conversation. Id. After that, Larson and Lowry left and went to the church building. Id.
On December 7, 2012, Lowry sent Rabo-li an email in which he stated that “a student in Mrs. Jones’s Technology class threatened to ‘kill’ another student this week.” Raboli Decl. at ¶ 18. Raboli asked Lowry to provide more details but does not recall receiving a response from him. Id. She investigated the matter, including speaking with Jones and Raibley, and determined that K.L. was not involved. Id. She learned that on December 4, 2012, Jones had discovered that an email had been sent by one student to another which stated “I am going to kill you moda fupa.” Id. at ¶ 19. This was investigated and appropriate action was taken. Id.; see also Raboli Depo. (Ex. 16 to Brague Decl.) at 61-64 (Raboli testified that during the 2012-13 school year, she learned of a threat by a student to kill another student which was investigated and for which discipline was issued). The incident did not involve K.L. or any Lowry family member. Raboli Decl. at ¶ 19. Raboli does not know if that is the incident Lowry was referring to in his December 7, 2012 email. Id.
On or about December 11, 2012, Lowry-emailed Raboli and T.L.’s teachers, affirmatively requesting that T.L. and K.L. not be seated near each other in any of their classes. Lowry Depo. (Ex. 1 to Sherman Decl.) at 187-89; Pis.’ Ex. 45 (referring to Dec. 11, 2012 email). Raboli spoke to her teachers and instructed them to keep T.L. and K.L. as separated as possible, including in Jones’s classroom. Raboli Depo. (Ex. 3 to Sherman Decl.) at 182-83, 214-15, 220; Baumer Depo. (Ex. 7 to Sherman Decl.) at 48-49, 56 (explaining that T.L. and K.L. were not near each other in his classroom); see also Pis.’ Exs. 37 (Dec. 11, 2012 email from Baumer to Lowry stating that T.L. and K.L. were sitting apart in his classroom); 39 (Dec. 12, 2012 email from PE teacher Nora Stuckey to Lowry informing Lowry that K.L. -and T.L are not in PE together); 40 (Dec. 12, 2012 email from Baumer to Lowry telling Lowry that T.L is sitting on the complete opposite side of the room from K.L., and that teachers Jones and Carlson “also have KL as isolated as we can have him in our rooms without having him outside” and further noting that “[i]ts just something all of us have to put up with”). In her subsequent monitoring of the classrooms, Raboli observed and confirmed that T.L. and K.L. were not seated together. Raboli Depo. (Ex. 3 to Sherman Decl.) at 183. Nonetheless, on December .19, 2013, Lowry emailed the SCS Board to complain that T.L. and K.L. were not being separated in Jones’s classroom. Pis.’ Ex. 45.
Meanwhile, on or about December 10, 2012, Lowry met with Raboli and school counselor Laus in Raboli’s office. During the meeting, Lowry’s actions disturbed and concerned Raboli. Raboli Depo. (Ex. 3 to Sherman Decl.) at 151. Raboli described Lowry as talking over them, not listening to their answers, not trying to work towards a solution, and becoming hostile. Id. Laus described Lowry as angry and intimidating. Laus Depo. (Ex. 15 to Sherman Decl.) at 18. • When the meeting became unproductive, Raboli asked him to leave her office. Raboli Depo. (Ex. 3 to Sherman Decl.) at 150. Lowry refused. Id.; Laus Depo. (Ex. 15 to Sherman Decl.) at 19 He finally left after Rabo-li’s fourth or fifth request. Id. at 20-21; Lowry Depo. (Ex. 1 to Sherman Decl.) at 219-20 (Lowry acknowledges that he did not leave when he was asked to). Laus was frightened by Lowry’s tone of voice and wondered what he would do next. Laus Depo. (Ex. 15 to Sherman Decl.) at 30.- Liljegren, the SCS secretary, was in the office next door and also became frightened by Lowry’s loud voice and refusal to leave the principal’s office. Lilje-gren Depo. (Ex. 9 to Sherman Decl.) at 34, 36. Raboli talked with Laus about her -personal safety concerns around Lowry. Laus Depo. (Ex. 15 to Sherman Decl.) at 24. After the office incident, Raboli told Liljegren that Lowry not leaving her office made her concerned about her own personal safety and the safety of Laus. Lilje-gren Depo. (Ex. 9 to Sherman Decl.) at 26.
Raboli investigated the December 6, 2012 incident in Jones.’s classroom involving Larson. Because of Larson’s classroom disruption, Raboli concluded that Larson would no longer be allowed to volunteer at SCS. Raboli Depo. (Ex. 3 to Sherman Decl.) at 144-46; see also id. at 146-47 (reciting other field trip or classroom disruptions by Larson); Baumer Depo. (Ex. 7 to Sherman Decl.) at 31-34 (indicating that Larson had previously caused disruption when volunteering on SCS field trips).
Raboli also suspended T.L. for two days, informing Lowry in a December 14, 2012 letter that based on her investigation, she determined that T.L. had been taunting, bullying, and harassing K.L. Raboli Depo. (Ex. 3 to Sherman Decl.) at 156-57; Defs.’ Ex. 13. Raboli noted that Larson herself stated that T.L. had talked loudly about Lowry getting a restraining order related to the incident with Lint. Defs.’ Ex. 13. T.L. was suspended from school on December 17 and 18, 2012, Id.
Also on December 14, 2012, Raboli issued a no trespass order to Lowry based on the hostile interactions between Lowry and SCS staff, including his entering the SCS office looking for Raboli twice after the December 10, 2012 meeting. Raboli Depo. (Ex. 3 to Sherman Decl.) at 176-77, 189; Defs.’ Ex. 18. Raboli continued to communicate with Lowry via email relating to issues involving all three Lowry children. Raboli Depo. (Ex. 3 to Sherman Decl.) at 188.
Several days after suspending T.L., Raboli reversed T.L.’s suspension and removed it from her permanent record because Raboli failed to give T.L. an opportunity to be heard and present her side of the story before suspending her. Ra-boli Depo. (Ex. 3 to Sherman Decl.) at 157, 223-24. SCS informed Lowry of this decision in a December 31, 2012 letter to his attorney because by then, Low-ry had retained counsel and submitted a tort claim notice to SCS. Defs.’ Ex. 17.
C. January 2013
In mid-January 2013, Raboli asked Lil-jegren to bring T.L. to Raboli’s office to discuss an issue about “note-taking.” Ra-boli Depo. (Ex. 3 to Sherman Decl.) at 109. During Jones’s class, Jones noticed that T.L. was not performing the class-assigned task arid after being asked, she still did not work on the task, prompting Jones to look at what T.L. was doing. Jones Depo. (Ex. 12 to Brague Decl.) at 38-39. In response to Jones’s request, T.L. gave Jones the piece of paper. Id. Jones made a copy of it and gave the original back to T.L. Id. at 39.
In late December 2012, T.L.’s therapist suggested that she take notes when she felt harassed by the “other student.” Pis.’ Ex. 25 (log completed by Raboli of January 14, 2013 meeting with T.L. and Laus in which Raboli wrote that T.L. “said her counselor told her to take notes.”); Defs.’ Ex. 21 at 3 (notes of therapy session dated December 19, 2012 with counselor Kristy Baker, Ph.D., in which Baker discusses with T.L. that when she feels harassed by the “other student,” she could document what was said, when it was said, and who witnessed it). During the January 2013 meeting about the note taking, Raboli told T.L. that note taking was a violation of school policy as stated in the student handbook. Raboli Depo. (Ex. 3 to Sherman Decl.) at 109-10; Defs.’ Ex. 5 at 7 (SCS Student-Parent Handbook prohibiting note writing or passing at school); but see Raboli Depo. (Ex. 16 to Brague Decl.) at 113-114 (Raboli stated in deposition that note taking is not expressly listed in the Handbook’s “Discipline Protocol” as a minor infraction but it could be viewed as “[b]eing disrespectful to peers” if it were shared with others).
Raboli told T.L. that she respected what her counselor had told her but that her note taking violated the rules and constituted bullying and harassment. Pis.’ Ex. 25 (log of meeting by Raboli and separate log of meeting by Laus who was present). T.L. was warned that if it happened again, she would be suspended. Id. Both Raboli and Laus noted in their written description of this meeting that the meeting ended because T.L. wanted her father to be present and he was not allowed on campus. Id. T.L. was sent back to class with no other consequence or discipline. Laus Depo. (Ex. 15 to Sherman Decl.) at 43; Raboli Depo. (Ex. 3 to Sherman Decl.) at 111.'
On or about January 23, 2013, Lowry withdrew T.L. and G.L. from SCS, but left his youngest child, M.L. enrolled there.
III. G.L.’s Disability and Accommodation
G.L. has diabetes. Raboli and her staff were trained in G.L.’s diabetes protocol by Sherwood School District Nurse Lisa Church. Raboli Depo. (Ex. 3 to Sherman Decl.) at 49-50, 131, 132, 133. Liljegren’s duties included dispensing medication to sick or injured students and as part of those duties, Church trained her regarding G.L.’s diabetes protocol. Liljegren Depo. (Ex. 9 to Sherman Decl.) at 19, 21, 31, 43-44. She helped monitor his blood sugar. Id. As part of assisting G.L., Liljegren spoke often with Lowry about monitoring G.L.’s blood sugar. Id. at 21, 42. She also discussed maintaining G.L.’s diabetes checks with Raboli. Id. at 25. SCS maintained detailed logs that documented the monitoring of G.L.’s blood sugar levels. Id. at 44-45.
Church testified that there was a policy for ensuring that G.L. ate his lunch or ate the carbohydrates he had bolused for by having the lunchroom monitors make sure G.L. ate his lunch. Church Depo. v(Ex. 24 to Sherman Decl.) at 39-40. Although she did not know if someone physically accompanied G.L. from the office, where he went before lunch, to the lunchroom to make sure he was actually eating his lunch there, if his subsequent monitoring showed that his blood sugar was high or low, Church would be notified and she would review the protocol with SCS staff. Id. at 40-41.
On one occasion in mid-November 2012, G.L. did not eat or finish his lunch, causing a lower blood sugar reading after he returned home that afternoon. Lowry Depo. (Ex. 1 to Sherman Decl.) at 151-53. Lowry told SCS about the lunch incident, which was the only time he ever told SCS about G.L. not getting enough to eat in relation to his diabetes. Id. at 155-56. Lowry did not take G.L. to the doctor because of the low blood sugar caused by the missed lunch. Id. Church is unaware of any other incident where a meal was missed or any incident where G.L.’s monitoring did not occur. Church Depo. (Ex. 24 to Sherman Decl.) at 37.
In response to the missed lunch, Raboli spoke to Liljegren to make her aware that G.L. did not eat his lunch. Raboli Depo. (Ex. 3 to Sherman Deck) at 128. Although Liljegren was not in charge of G.L.’s lunch, Raboli wanted Liljegren to be aware of the missed meal. Id. Raboli also spoke to “the people at lunch” whom she described as including assistant Annie Sis-sens and teacher Nora Stuckey. Id. at 128-29 (naming the assistant and Stuckey as the usual “lunch people” who monitor and insure that all students, including G.L., eat their lunches). Liljegren also spoke to G.L. reminding him to eat everything in his lunch box every day. Lilje-gren Depo. (Ex. 9 to Sherman Decl.) at 53.
Church sent Lowry an email the day after the missed lunch, which was a Friday, and visited SCS the next Monday, determining that there had been a misunderstanding and that G.L. thought he was not supposed to eat in a certain place even though he had been given the freedom to do so. Defs.’ Ex. 10 (Nov. 16 and 19, 2012 emails between Lowry and Church). Low-ry thanked Church for her assistance. Id. Church also testified in deposition that when she went to the school regarding the incident, she spoke to Liljegren and clarified the protocol with G.L.’s teachers. Church Depo. (Ex. 24 to Sherman Decl.) at 41. She also encouraged G.L. to advocate for himself if he needed to finish his lunch and made sure he knew he was allowed to do that. Id. at 41-42.
G.L.’s blood sugar was tested consistently. Raboli Depo. (Ex. 3 to Sherman Decl.) at 129-30. G.L. never had a diabetic arrest during the 2011-12 and 2012-13 school years when he attended SCS. Low-ry Depo. (Ex. 1 to Sherman Decl.) at 171. G.L. never went into a diabetic coma during his attendance at SCS. Id. There is no evidence that the Lowry family communicated with their doctor about any concern related to G.L.’s diabetes because of anything that did or did not happen at SCS. G.L.’s doctor never told Lowry that SCS was not following his diabetes protocol. Id. at 182-83.
In one other incident, G.L. left his PE class without telling his teacher, Stuckey. G.L. Depo. (Ex. 7 to Brague Decl.) at 41-42. He felt his blood sugar decreasing “and had to go to the office immediately to check my blood.” Id. at 41. He conceded at deposition that it would have taken only about five seconds to tell Stuckey he needed to go to the office for a medical reason and he could have done that if he wanted to, but he “thought my blood sugar was important” and.it was “very urgent.” Id. (Ex. F to Sherman Reply Decl.) at 42, 45-46. Lowry testified that he understood that G.L. left the class without telling Stuckey, went to the restroom, and then proceeded to the office to have his blood checked. Id. (Ex. 5 to Brague Decl.) at 164. G.L. could not remember if he actually received a punishment or if Stuckey just spoke to him. Id. (Ex. F to Sherman Reply Decl.) at 46-47. He indicated in his deposition that even if he received a punishment, it was for leaving without telling Stuckey, not because he needed to check his blood. Id. at 44. He agreed that he did not feel well, but conceded that he was not on the verge of passing out. Id. at 45. He could not remember whether he went to the bathroom first, but he agreed that if he had, he would have had time to tell Stuckey he was leaving. Id. at 48.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of ‘“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting former Fed.R.Civ.P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir.2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir.2007) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548).
The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir.2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir.2011).
If the factual context makes the non-moving party’s claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
DISCUSSION
As noted above, the following claims remain in the case: (1) a Title IX claim by T.L. for peer-on-peer sexual harassment; (2) a Title IX retaliation claim brought by all Plaintiffs; (3) a section 1983 claim by T.L. alleging a violation of her Fourteenth Amendment due process rights; (4) an IIED claim by T.L.; (5) a negligence claim by T.L.; and (6) disability discrimination claims by G.L. under the Rehabilitation Act and the ADA. I address the claims in turn, followed by a discussion of SCS’s receipt of federal funds.
I. T.L.’s Title IX Peer-on-Peer Sexual Harassment Claim
Title IX prohibits discrimination “on the basis of sex.” 20 U.S.C. § 1681(a). However, because Title IX’s prohibition is limited to instances of intentional discrimination, see Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 638, 642-44, 648-49, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), Defendants are liable for peer-on-peer harassment “on the basis of sex” only if they were deliberately indifferent to the alleged harassment. Thus, to be liable on the Title IX claim, Defendants must have (1) had actual knowledge of, and (2) been deliberately indifferent to, (3) harassment “on the basis of sex” that was so severe, pervasive, and objectively offensive that it (4) deprived the victim of access to the educational benefits or opportunities provided by Defendants’ school. See Davis, 526 U.S. at 644-645, 650, 119 S.Ct. 1661.
Defendants argue that the harassment was not sufficiently severe to violate Title IX, that the District was not deliberately indifferent in any event given the responses it took to complaints about K.L., and that T.L. was not deprived of any educational benefits or opportunities provided by SCS. Because I agree with Defendants on the issue of deliberate indifference, ' I do not address the other issues.
In the 2011-12 school year, SCS learned of a problem between T.L. and K.L. in February 2012 when Lowry and Lint both contacted the school asking the two students be separated. This was remedied to Lowry’s satisfaction by having T.L. and K.L. in separate schedules. Lowry Depo. at 119-20 (issues from 2011-12 school year were resolved).
The record establishes that Defendants did not have knowledge of continuing problems with K.L. until November 2012 when K.L. made an inappropriate in-class statement about erections which initiated a chain of events involving SCS, M.K., her parents, R.J., his parents, and reports to the police. None of these events involved T.L. It was not until December 2012 that Lowry himself told Defendants of any ongoing problems between K.L. and T.L.
Although Plaintiffs cite to evidence in the record to support their assertion that Defendants knew that K.L. had behavioral issues and would insult and use vulgar language toward other students, including T.L., the record, when actually examined, does not completely support Plaintiffs’ assertion. For example, Plaintiffs cite to Baumer’s deposition testimony and Deposition Exhibit 46. The cited testimony contains Baumer’s disagreeing with the assertions made by Lowry in Lowry’s February 28, 2012 email, disagreeing with Lowry’s representations regarding the frequency of the comments made by K.L. to T.L., and disagreeing with the allegation that K.L. had called T.L. a “bitch.” Bau-mer Depo. (Ex. 7 to Sherman Decl.) at 47:13-18. Deposition Exhibit 46 is Low-ry’s February 28, 2012 email. Brague Decl. at ¶ 37 (stating Deposition Exhibit 46 is Plaintiffs’ Exhibit 36 which is a copy of the email). The only reasonable inference from these citations is that Lowry believed that K.L. made negative and at times vulgar statements to and about T.L. and that he notified Defendants of this on February 28, 2012. While this does provide evidence that Lowry notified Defendants about a problem in February 2012, the record indisputably establishes, as previously noted, that the issues in the 2011-12 school year were resolved to Lowry’s satisfaction. In another citation, Plaintiffs rely on T.L.’s deposition testimony that K.L. called her various vulgar names every day for more than two years. T.L. Depo. (Ex. 6 to Brague Decl.) at 7:23-8:5, 17:13-15. But, the cited testimony does not indicate that she told Defendants.
The record establishes that in the 2011-12 school year, Defendants knew, in February 2012, of a problem between T.L. and K.L. and they resolved it. In 2012-13, while there are allegations that KL.’s conduct continued in the same fashion as it had occurred in the 2011-12 school year, there is no evidence that before mid-November 2012, Defendants were aware of any harassment issues with K.L. Further, there is no evidence in the record that before early to mid-December 2012, Defendants were aware of any ongoing sexual harassment issues between K.L. and T.L. As a result, the evidence, even when construed in a light most favorable to T.L., produces only one reasonable conclusion: Defendants were not deliberately indifferent.
The Ninth Circuit has made clear that to be actionable under Title IX, an educational institution’s response to harassment must be “ ‘clearly unreasonable in light of the known circumstances[.]’ ” Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir.2006) (quoting Davis, 526 U.S. at 648, 119 S.Ct. 1661). “In other words, we must decide whether, on this record, one could find that the College made ‘an official decision ... not to remedy the violation.’ ” Id. (quoting Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)). Negligent or careless conduct is not deliberate indifference. Id. And, that the remedy imposed by the educational institution is not the preferred remedy of the victim does not create an issue of fact with regard to deliberate indifference. Id.
In response to M.K.’s complaint in November 2012, SCS conducted an investigation and suspended K.L. for 2.5 days, even though the investigation failed to establish conclusively that. he had threatened her with his penis. SCS also had a threat assessment performed by a team of professionals including a mental health specialist, a counselor, Raboli, KL.’s own behavioral specialist, and a school resource officer. This occurred within a week or two of M.K’s complaint. Based on input from the threat assessment team, the school put a safety plan in place which restricted access between K.L. and M.K.
When K.L. made another threat on his first day back after the suspension for the M.K. incident, he was suspended again and another threat assessment was performed. This time, Raboli hired an aide to accompany K.L. during the school day upon his return to school. When Lowry emailed Raboli on December 11, 2012 to request that T.L. and K.L. not be seated near each other in any of their classes, Raboli spoke to the teachers and instructed them to keep the two as separated as possible. The evidence in the record establishes that the two were separated in all classes thereafter, as much as possible, with the possible exception of Jones’s class. Although Raboli states that she observed them separated in that class and Baumer emailed Lowry to tell him that Jones had K.L. as isolated as possible without moving him outside, both Lowry and Dayna Lowry complained that the two were not being separated in Jones’s class. For the purposes of this motion, this Court accepts that the two were not completely separated in Jones’s class.
Finally, when Lowry made a formal complaint to the SCS Board on or about December 19, 2012 regarding the suspension of T.L., the no trespass order issued to Lowry, and the ban on Larson’s volunteering at SCS, Pis.’ Ex. 44, the SCS Board allowed him time before the regular session of the Board on or about December 19, 2012 to voice his complaint. Christensen Depo. (Ex. 6 to Sherman Decl.) at 43, 52-53, 69. Although there is a dispute about how much time the Board allotted to him, there is no dispute that the Board heard from him very shortly after he filed his complaint and that same night created a three-member committee to investigate his complaint. Id. at 43^14. Approximately nine or ten days later, Lowry filed a tort claim notice. Defs.’ Ex. 17. The SCS Board attempted to interview T.L, but got no response from Lowry’s attorney. Simas Depo. (Ex. 19 to Sherman Decl.) at 70-71; Christensen Depo. (Ex. 6 to Sherman Decl.) at 15. Nonetheless, the SCS Board continued its investigation and issued a preliminary report only two months after Lowry filed his complaint. Simas Depo. (Ex. 19 to Sherman Decl.) at 72, 75-76 (on or about February 12, 2013, SCS Board made its preliminary findings based on the information it had); Christensen Depo. (Ex. 6 to Sherman Decl.) at 51-52. One month later, Lowry filed this action.
It cannot be disputed that Defendants acted reasonably in light of the known information. Defendants resolved the issues between T.L. and K.L. in the 2011-12 school year. Once they were told by Low-ry in December 2012 of persisting issues between T.L. and K.L., they separated the two students as much as practicable. Even assuming T.L. and K.L. were not separated as far as possible in Jones’s classroom after being notified by Lowry that issues between the two students persisted, K.L. was accompanied by Raibley during this time. In response to incidents with other students, Defendants suspended K.L., had a threat assessment performed, adopted a safety plan, suspended him again, had another threat assessment performed, and hired Raibley as a full-time aide to accompany K.L. The Board also responded promptly to Lowry’s formal complaint, allowing Lowry at least some time in person to speak at the Board’s next meeting and creating a committee to investigate the allegations. Other than expelling K.L, the remedy T.L. preferred, there is not much more Defendants could have done. Oden and other cases make clear that a harassment victim’s disagreement with the punishment imposed on the harasser by the school does not create an issue of fact and does not establish deliberate indifference. As a result, Defendants are entitled to summary judgment on T.L.’s Title IX peer-on-peer sexual harassment claim.
II. Title IX Retaliation Claims
To prevail on a Title IX retaliation claim when a claimant lacks direct evidence of retaliation, the claimant must establish a prima facie case of retaliation by showing that (1) he or she engaged in protected activity; (2) he or she suffered adverse action by the defendant; and (3) there is a causal connection between the two. Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 1997, 185 L.Ed.2d 866 (2013). If the plaintiff establishes a prima facie ease, the burden shifts to the defendant to articulate legitimate, non-retaliatory reasons for its actions. Id. If the defendant does so, the plaintiff must then show that the reasons preferred by the defendant are pretextual. Id.
In the Title IX context, the plaintiff must show that he or she was retaliated against because he or she complained of sex discrimination.' Jackson v. Birmingham, Bd. of Educ., 544 U.S. 167, 184, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (to prevail in a retaliation claim under Title IX, a plaintiff must show that defendants retaliated against her because she complained of sex discrimination); Cannon v. Univ. of Chi., 441 U.S. 677, 694, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (Title IX protects “persons discriminated against on the basis of sex”). That is, the protected activity must be that the plaintiff complained of sex discrimination and not other conduct.
This claim is brought by all four Plaintiffs: Lowry, Larson, T.L., and G.L. Defendants argue that none of them can establish a prima facie case because the record contains no evidence that any of the Plaintiffs complained about sex discrimination before the alleged retaliation occurred. Defendants also argue that they had a legitimate nondiscriminatory reason for their actions and that there is no evidence of pretext.
A. Protected Conduct — Complaints of Sex Discrimination
Plaintiffs generally refer to “Mr. Lowry’s 2011/12 complaint to Defendants of KL.’s harassing behavior toward T.L.” Pis.’ Resp. at 16. As noted above, the only evidence of a complaint by Lowry to Defendants in the 2011-12 school year regarding KL.’s behavior toward T.L. is Lowry’s February 28, 2012 email to Bau-mer and Smith. As noted above, T.L. and K.L. were given separate schedules in response to that email and Lowry testified that the issue in 2011-12 had been resolved. "While conceivably the February 28, 2012 email could be seen as a complaint of sex discrimination, and thus, protected conduct, it is only by Lowry, not any of the other three Plaintiffs, and, more importantly, the record does not establish that any retaliation occurred in response to that complaint.
Lowry contends his September 2012 withdrawal of T.L. was due to the resumption of issues between K.L. and T.L. at the commencement of the 2012-13 school year. But, the record fails to show that he told Defendants that his withdrawal of T.L. at that time was due to conduct by K.L. Thus, at this point, Defendants had received no communication from Lowry regarding any “sex discrimination” being perpetrated by K.L. to T.L. And, when he re-enrolled T.L. in October 2012, he made no comments and raised no concerns about K.L.’s behavior to T.L. Accordingly, at least until late November 2012 or early to mid-December 2012, there appears to be no evidence in the record of any “sex discrimination” complaints made by Lowry to Defendants in the 2012-13 school year.
Plaintiffs suggest that the December 5, 2012 incident with Lint was the initiation of some sort of sex discrimination complaint by Lowry. Plaintiffs argue that the incident gave rise to Lowry seeking “immediate assistance” from Defendants and this occurred' in the context of other parents making multiple complaints about KL. But, what other parents complained about is not at issue here because this claim concerns only alleged retaliatory conduct by Defendants taken against Low-ry and the other Plaintiffs for their sex discrimination complaints. The December 5, 2012 incident with Lint does not establish that Lowry complained about sex discrimination at that point.
On December 6, 2012, Lowry and Larson confronted Jones after Jones asked Larson to leave her classroom. There is no evidence that Lowry or Larson complained about sex discrimination or harassment in this encounter.
On that same date, Lowry emailed Ra-boli, thanking her for updating him on meeting with T.L. Ex. 2, Lowry Decl. He wrote that “[T.L.] (and other students) has ‘put up’ with [KL.’s] vulgar and threatening behaviors almost daily for 2 years. I hope that comes to an end very soon. But the harassment by a parent on a minor is illegal, unethical, and wildly inappropriate especially given that is that very threatening behavior from her son that has caused problems at SCS!” Id.
Defendants argue that although the December 6, 2012 email mentions KL.’s “vulgar and threatening” behavior, it provides no specifics regarding T.L. and does not ask SCS to do anything addressing sexual harassment. I agree with Defendants that this email does not expressly raise a complaint but instead makes a factual assertion that K.L. has engaged in vulgar and threatening behavior for two years. I also note that the word “vulgar” does not necessarily convey a sexual meaning. See Webster’s Third New Int’l Dictionary 2566 (1993) (defining “vulgar” to mean first “of the mob, of the common people, common” and also to mean “lacking in cultivation, perception, or taste,” as well as “coarse,” “rude,” “morally crude,” or “lewd, obscene, or profane in expression or behavior”). Furthermore, Lowry expresses no dissatisfaction with SCS’s response to any particular situation. However, construing the evidence in a light most favorable to Plaintiffs, the email must be interpreted as making a complaint about sexual harassment by K.L. toward T.L.
Lowry’s December 7, 2012 email to Ra-boli about a student who had allegedly threatened to kill another student made no mention of sexual harassment or discrimination. Pis.’ Ex. 43. There is no evidence that his December 10, 2012 meeting with Raboli and Laus concerned sex discrimination complaints. It is possible that his December 11, 2012 email requesting that T.L. and K.L. be seated apart from each other be viewed, if interpreted in a light most favorable to Plaintiffs, as a complaint of sex discrimination or harassment but, while there are references to the email, a copy of the actual email does not appear to be in the record. Thus, this Court cannot say one way or the other whether the December 11, 2012 email is a complaint of sexual discrimination or harassment. Nonetheless, the December 6, 2012 email is enough to show that Lowry engaged in protected conduct.
As to Larson, T.L., and G.L., there is no evidence establishing that any of them made a sex discrimination or harassment complaint to Defendants before any of the alleged retaliatory conduct occurred on December 14, 2012 when Raboli suspended T.L., issued the no trespass order to Low-ry, and prohibited Larson from volunteering at the school. Thus, only Lowry meets his burden of establishing that he engaged in protected conduct.
B. Legitimate Non-Diseriminatory Reason
Defendants argue that SCS had legitimate, nondiscriminatory reasons to prohibit Larson from volunteering, to issue the no trespass order to Lowry, and to suspend T.L. for two days. The record supports Defendants. As recited previously, Jones found Larson’s presence in her classroom the afternoon of December 6, 2012 to be disruptive and Raboli, who investigated the incident, informed Lowry on December 14, 2012 that Larson would not be allowed in the classrooms. As to T.L., Raboli determined that the conversation with Larson on the afternoon of December 6, 2012 in KL.’s presence about the previous day’s incident with KL.’s mother and which continued despite requests by K.L. to stop, was taunting and bullying of K.L. And, as to Lowry, the record establishes that Jones, Raboli, Laus, and Liljegren all felt intimidated by him and feared him. These are all legitimate, nondiscriminatory reasons for Defendants’ actions toward Lowry, Larson, and T.L.
C. Pretext
Plaintiffs contend that evidence from SCS staff and Board members attesting that Lowry was not demeaning or disrespectful to them, or that they were not intimidated by him, shows that the no trespass order was a pretext for retaliation toward Lowry for his protected conduct. E.g., Baumer Depo. (Ex. 9 to Brague Decl.) at 23-24 (Baumer stated that Lowry was not demeaning or disrespectful to Baumer and Baumer did not observe Lowry acting that way toward other SCS employees); Church Depo. (Ex. 11 to Brague Decl.) at 16 (Church stated that she did not feel intimidated by Lowry). And, in response to Smith’s testimony that she had been warned by Sherwood School District liaison Brian Putnam about Lowry being demeaning and disrespectful as well as aggressive and confrontational (information she passed on to Raboli when Raboli took over as principal in the 2012-13 school year), Plaintiffs assert that Putnam has no recollection of having that conversation with Smith. Smith Depo. (Ex. 2 to Sherman Decl.) at 21-22; Raboli Depo. (Ex. 3 to Sherman Decl.) at 78-79. Putnam Decl. at ¶ 2.
I disagree with Plaintiffs that this evidence suggests pretext. The fact that some members of the SCS community may not have observed confrontational or disrespectful behavior by Lowry does not create an issue of fact regarding the incidents on which Raboli based her December 14, 2012 decisions. Without evidence that Lowry was treated differently than other parents who engaged in similar actions, the fact that others failed to see similar behavior in different contexts does not show pretext. I reject Lowry’s argument that pretext is created because Defendants treated Lint differently when they did not issue her a no trespass order or restrict her from campus despite her “accosting” three students on the way home from school. Lint and Lowry were not similarly situated because Lint’s actions on December 5, 2012 were not directed toward school personnel and did not occur on school property. Thus, the fact that no restrictions were issued to Lint prohibiting her from entering school property does not establish pretext.
Nonetheless, pretext can be shown by temporal proximity between the protected conduct and the alleged retaliation. E.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that when courts accept “mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case, they uniformly hold that the temporal proximity must be ‘very close.’ ”); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.2002) (in employment discrimination case, court confirmed that timing alone can satisfy the third prima facie factor of causation when “adverse employment action follows on the heels of protected activity[,]” but the court noted it would not necessarily apply in every case).
Here, the protected conduct is Lowry’s December 6, 2012 email. He received the no trespass order only eight days later, on December 14, 2012. This is sufficient to create an inference of pretext. But for the issue of federal funding, discussed below, Lowry’s claim for Title IX retaliation would survive summary judgment.
Under the theory of “third-party retaliation,” T.L.’s Title IX retaliation claim would similarly survive summary' judgment. In a 2011 case, the Supreme Court discussed the issue of “third-party retaliation” in the Title VII context. Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011). There, the Court held that an employee could bring a Title VII claim on the basis of retaliation that he suffered in response to protected activity engaged in by a coworker who was a close family member. Id at 867-69. The plaintiff and his fiancée were both employed by the same employer. After the plaintiffs fiancée filed an administrative complaint alleging sex discrimination against herself, the employer terminated the plaintiffs employment several weeks later. Id at 867.
The Court applied a “zone of interest” test under which a plaintiff has standing to sue where he “falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Id at 869 (internal quotation marks omitted). The test “den[ies] a right of review if the plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id (internal quotation marks omitted). A plaintiff has standing to sue if she possesses an interest that Congress arguably sought to protect when enacting Title VII, while excluding from suit “plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.” Id (internal quotation marks omitted).
Applying the zone of interest test, the Supreme Court concluded that the plaintiff had standing to sue because “the purpose of Title VII is to protect employees from their employers’ unlawful actions.” Id Also, the plaintiff was not an accidental victim of his employer’s discriminatory acts, nor were his injuries collateral damage caused by the same unlawful acts. Id Rather, “hurting [the plaintiff] was the unlawful act by which the employer punished his fiancée.” Id
None of the parties in the instant case addresses this issue. Assuming that Thompson applies in the Title IX context, T.L. has a third-party retaliation claim based on a sex discrimination complaint made by Lowry because she, as the student, is clearly in the “zone of interest” intended to be protected by Title IX. Moreover, because parents commonly advocate on behalf of their children in schools, it is reasonable to conclude that the statute protects the student from retaliation for the parent’s protected activity.
In a very recent Ninth Circuit case, the court affirmed a district court finding that the Plaintiffs, members of a women’s high school softball team, suffered “judicially cognizable injuries flowing from [the school’s] retaliatory responses to Title IX complaints made by their parents and [their] [c]oaeh.” Ollier v. Sweetwater Un. High Sch. Dist., 768 F.3d 843, 866-67 (9th Cir.2014). The court cited Thompson in recognizing that students fall “within the ‘zone of interests’ that Title IX’s implicit antiretaliation provisions seek to protect.” Id. at 866. Ollier supports the conclusion that T.L. can bring a Title IX claim for retaliatory conduct directed at her for a Title IX protected complaint made by •Lowry.
In contrast, there is no support for extending the “zone of interest” to Larson. As the children’s nanny, she is not within the “zone of interests” sought to be protected by Title IX as she is neither the student, or the parent of a student.Therefore, unless she engaged in protected conduct herself, retaliation directed at her is not actionable on a third-party retaliation theory. Even accepting as true that Defendants retaliated against her because of Lowry’s protected conduct, she does not have a claim.
Regardless of the federal funding issue, .summary judgment is granted to Defendants as to Larson’s and G.L’s Title IX retaliation claims. But for the federal funding issue, summary judgment to Defendants on Lowry’s and T.L.’s Title IX retaliation claims would be inappropriate. However, as discussed in Section VII of this Opinion, Plaintiffs fail to establish that SCS is the intended recipient of federal funding and thus, summary judgment is granted to Defendants on all of the Plaintiffs’ Title IX retaliation claims.
III. Due Process Claim
As pleaded in the Second Amended Complaint, the 42 U.S.C. § 1983 claim is both a procedural and substantive due process claim. Sec. Am. Compl. at ¶ 34 (alleging that Plaintiffs were denied basic due process contentions including notice and hearing before being denied liberty and property interests in a public school education); Id. at ¶ 35 (Plaintiffs denied substantive due process right to property and liberty interests in a public education). Following the motion to dismiss, only T.L.’s due process claims remain.
Defendants move for summary judgment arguing that T.L. fails to establish that Defendants had a custom, practice, or policy of suspending students without due process. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-92, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (local governmental entities liable under section 1983 only when challenged conduct occurred pursuant to an expressly adopted official policy or a longstanding practice or custom). Additionally, Defendants contend that even if T.L. establishes such a custom, practice, or policy, she received adequate post-deprivation process when her suspension was removed from her record. Because I agree with Defendants on the Monell issue, I do not address the post-deprivation process issue.
Plaintiffs do not rely on a custom or practice theory. Rather, they suggest that there is an issue of fact as to whether SCS had an official policy regarding due process rights in connection with suspensions and to the extent SCS did not have such a policy, the failure to have a policy violates section 1983.
The SCS Student-Parent Handbook has a section entitled “School Policies.” Pis.’ Ex. 20 at 2, 16-26. Within that section is a policy on “Exclusion from School” which addresses suspension and includes the following language: “[i]n case of a suspension, the student is informed of the suspension charges by the administration and asked to explain his/her view of the event. When the decision to suspend is made, parents are notified and a procedure for reinstatement and appeal is explained.” Defs.’ Ex. 5 at 21. A separate subsection, under the heading “Consequences,” addresses “Suspension” and indicates that suspensions may be in-school or out-of-school. Id. at 29. It gives examples of what types of conduct can result in either type of suspension. Id.
Raboli testified that the Student-Parent Handbook contained a “shortened, easy-to-read version of the school policies.” Rabo-li Depo. (Ex. 3 to Sherman Decl.) at 48-49. This was separate from the SCS Policies kept in a binder in the SCS office. Id.; see also id. at 53-54 (Raboli testified that SCS has policies and a Student Handbook and has a discipline framework within its policies).
Additionally, SCS had a separate publication entitled “School-wide Discipline System” which discusses the school’s philosophy of and approach to discipline. Pis.’ Ex. 21. It states that suspension or expulsion is a last resort which is assigned on an individual basis and further, that SCS “follows the Sherwood School District policies.” Id. at 4; see also Pis.’ Ex. 20 at 16 (Student-Parent Handbook stating at the beginning of the section on “School Policies” that “[sjtudents are responsible to follow all policies under the Rights and Responsibilities section of the Sherwood School District School Board Policies.”). Raboli testified that in the 2012-13 school year, the policies of the Sherwood School District regarding st